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[2019] ZALCJHB 52
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SASBO obo Mahlangu v Commission for Conciliation, Mediation and Arbitration and Others (JR1142/15) [2019] ZALCJHB 52 (20 March 2019)
in
the labour court of South Africa, JOHANNESBURG
Reportable
case no: JR 1142/15
In
the matter between:
SASBO
OBO MAHLANGU,
DESMOND
Applicant
And
THE COMMSSION FOR
CONCILIATION,
MEDIATION
AND ARBITRATION
First Respondent
LUNGILE
MATSHAKA
Second Respondent
STANDARD
BANK OF SOUTH AFRICA
Third Respondent
Delivered:
20 March 2019
JUDGMENT
MAHOSI.J
Introduction
[1]
This is an application in terms of section 145
of
the Labour Relations Act (LRA)
[1]
to
review
and set aside the arbitration award issued by the first respondent
(the commissioner) under the auspices of the second respondent,
the
Commission for Conciliation, Mediation and Arbitration (the CCMA),
under
case number GAJB 3916/15 dated 19 June 2015.
[2]
Prior to outlining the applicant’s
case in detail and considering the issues that gave rise to the
claim, it is necessary
to set forth the facts that form the relevant
background to the dispute between the parties.
Material
background facts
[3]
The factual matrix in this matter is very straightforward and not in
dispute. The
essential facts may be
summarized as follows:
[4]
The applicant’s member (Mr Mahlangu) started working for the
third respondent
(Standard Bank) on 1 September 2004 as an Operations
Clerk and was subsequently promoted to various positions. At the time
of his
dismissal, Mr Mahlangu was employed as a Sales Enablement
Consultant: VAF Sales Centre (Vehicle and Asset Finance) and his
duties
included organising finance for customers who want to buy new
vehicles in the Sandton area. Mr Mahlangu was expected to reach the
monthly budget targets set for him in terms of the performance
contract that was signed by him on 17 February 2014. However, he
failed to meet the monthly budget targets set for him.
[5]
Standard Bank had numerous informal discussions with Mr Mahlangu from
early 2014 during
which it was brought to his attention that his
performance was lacking.
[2]
The
parties agreed on a tactical plan in order to assist Mr Mahlangu with
his performance. There was still no improvement in his
performance.
Standard Bank took a decision to put Mr Mahlangu on a formal
performance monitoring process in terms of its policies.
In this
regard, the performance monitoring meetings were held on 20 August,
28 November 2014, 16 January 2015 and 29 January 2015
respectively,
but they did not yield any positive results.
[6]
Standard Bank then issued Mr Mahlangu with a termination letter on 4
February 2015, terminating
his employment effectively from 1 March
2015. Dissatisfied with the decision to terminate his employment, Mr
Mahlangu referred
an unfair dismissal dispute to the CCMA. The matter
was conciliated unsuccessfully and Mr Mahlangu referred the matter to
arbitration
that was then set down for 10 June 2015.
[7]
At the commencement of the arbitration hearing Mr Mahlangu requested
a postponement
as his attorney was unable to attend however the
commissioner refused to grant the postponement. The arbitration
proceeded with
Mr Mahlangu unrepresented and Standard Bank
represented by Mr P. Mashalane, its Legal Manager. The arbitration
award was subsequently
issued on 19 June 2015 in terms of which the
commissioner found Mr Mahlangu’s dismissal substantively fair.
It is this award that
is the subject of this application.
T
he
Grounds for Review
[8]
Mr Mahlangu challenged the arbitrator’s award on a number of
grounds. Firstly, that
the commissioner’s finding that his
dismissal was substantively fair was not supported by the evidence
before him.
[9]
Secondly, that the commissioner misconducted himself during the
arbitration in that
he was dosing off while he (Mr Mahlangu) was
presenting evidence to an extent that he had to wake him up. However,
the commissioner
was allegedly awake when the Standard Bank was
presenting evidence.
[10]
Thirdly, that the commissioner was allegedly biased towards Mr
Mahlangu in that he was irritated
and impatient with Mr Mahlangu when
he was challenging Standard Bank’s evidence. Furthermore, the
commissioner was allegedly
not taking notes when Mr Mahlangu was
presenting evidence but he took notes when Standard Bank was
presenting evidence.
[11]
Fourthly, Mr Mahlangu challenged the commissioner’s decision to
refuse postponement on
the basis that he failed to take into account
the comparative abilities of the two parties.
The
Respondents’ submissions:
[12]
Standard Bank opposed this application on the basis that Mr Mahlangu
was unable
to identify any irregularities that affected
the reasonableness of the decision reached
by the commissioner
having regard to the evidence adduced during the
arbitration proceedings. It contended that the commissioner
correctly
recorded all the evidence that Mr Mahlangu adduced during
the arbitration hearing. Further that the commissioner was alive to
all
issues before him and he applied his mind and arrived at a
decision that is reasonable in the circumstances.
The
Test for review
[13]
Arbitration awards are reviewable in terms of section 145 of the LRA,
which provides that any
party to a dispute who alleges a defect in
any arbitration proceedings under the auspices of the Commission may
apply to the Labour
Court for an order setting aside the arbitration
award. Section 145(2)(a) defines a defect as the commissioner’s
misconduct
in relation to the duties of the commissioner as an
arbitrator, gross irregularities in the conduct of the arbitration
proceedings,
exceeding the commissioner's powers or improperly
obtaining an award.
[14]
The test laid down in
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[3]
is a test of the substantive reasonableness of the outcome or result
of an arbitration award, which is an outcome based enquiry
[4]
,
entailing a stringent test aimed at ensuring that arbitration awards
are not lightly interfered with.
[5]
[15]
In
Bestel
v Astral Operations Ltd and Others
[6]
the Court stated as follows:
‘
It is important to
emphasise,
as
is exemplified
from
Carephone
,
and in
Schwartz
,
supra,
that
the ultimate principle upon which a review is based is justification
for the decision as opposed to it being considered to
be correct by
the reviewing court; that is whatever this Court might consider to be
a better decision is irrelevant to review proceedings
as opposed to
an appeal. Thus, great care must be taken to ensure that this
distinction, however difficult it is to always maintain,
is
respected.’
[7]
[16]
For the applicant to succeed with the review application, it must be
established that the commissioner’s
decision fell outside the
bounds of reasonableness on all the material that was before him,
including for the reasons not considered
by him.
[8]
[17]
Item 9 of Schedule 8 outlines a guideline in cases of dismissal for
poor work performance and it provides
as follows:
‘
Any
person determining whether a dismissal for poor work performance is
unfair should consider -
(a)
whether or not the employee failed to meet a performance standard;
and
(b)
if the employee did not meet a required performance standard whether
or not -
(i)
the employee was aware, or could reasonably be expected to have been
aware,
of the required performance standard;
(ii)
the employee was given a fair opportunity to meet the required
performance standard;
and
(iii)
dismissal was an appropriate sanction for not meeting the required
performance standard.’
[18]
The principles to be applied by the commissioner in considering the
fairness of a dismissal for poor
work performance were summarised by
the Labour Appeal Court (LAC) in
Gold
Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine v Commission
for Conciliation, Mediation and Arbitration and Others
[9]
as follows:
‘
In
order to find that an employee is guilty of poor performance and
consider dismissal as an appropriate sanction for such conduct,
the
employer is required to prove that the employee did not meet existing
and known performance standards; that the failure to
meet the
expected standard of performance is serious; and that the employee
was given sufficient training, guidance, support, time
or counseling
to improve his or her performance but could not perform in terms of
the expected standards. Furthermore the employer
should be able to
demonstrate that the failure to meet the standard of performance
required is due to the employee’s inability
to do so and not
due to factors that are outside the employee’s control.’
Analysis
[19]
Mr Mahlangu challenged the commissioner’s finding that his
dismissal was substantively fair on
the basis that it was not
supported by the evidence before him.
Item
9 of Schedule 8 requires the commissioner to firstly consider whether
the employee failed to meet a performance standard. In
a case where
he has not failed to meet the required performance standard, that
should be the end of the enquiry. It is only after
it has been
established that he failed to meet a performance standard that the
commissioner is required to consider whether he
was aware or could
have reasonably been expected to be aware of the required performance
standard, whether he was given a fair
opportunity to meet the
required performance standard and whether dismissal was an
appropriate sanction for not meeting the required
performance
standard.
[20]
The award evidenced that the commissioner based his finding on the
evidence which he summarised in
his analysis as follows:
‘
33.
Turning to the present case, it is common cause that the Applicant
was placed on a performance
improvement process that commenced with
performance contract signed for 2014. According to a detailed
individual performance graph
the Phase one (1) was between 8 and 27
July 2014. Four (4) formal discussions took place during the said
period.
34.
Phase two (2) was from 5 September
2014 to 28 November 2014 and during this period the Applicant’s
individual graph reflects formal 12 discussions. I must also point
out that I have noted the tactical plan as well the list of
actions
that were put in place. All that the discussions reflect that nothing
was done during the entire process. What came out
also came out from
the Respondent’s evidence is that the Applicant did not meet
the criteria of his scope of work.
35.
I have carefully considered what the Applicant tried to explain in
relation to the budget
or targets set for him that he agreed to. In
essence, that at critical stage he opted to go on leave, displayed
not understanding
or appreciating what he was facing.
36.
I have also noted that during the performance improvement review, the
Applicant was given
an opportunity to explain his continued
unacceptable work performance. It has also come loud and clear that
the Applicant was notified
beforehand [to prepare] to fully prepare
himself. He was further reminded that he may be assisted by either
his union (SASBO) or
fellow employee. As for the record the Applicant
did challenged the procedural fairness of the process.
37.
As highlighted by Grogan on has to accept that the employer has the
right to set reasonable
requirements in terms of output and the
standard of work required of the employee. If the employee fails to
attain the standards
set by the employer, the employer is entitled to
terminate the contract. Further, as also spelt out in Medpro (supra)
failure by
employees to meet performance set by their employers may
of course justify the employee’s dismissal’
[21]
It is apparent from the above that
Mr
Mahlangu failed to meet a performance standard that he was aware of
or could have reasonably been expected to be aware of. In
addition,
he was given a fair opportunity to meet the required performance
standard in that mechanisms were put in place to assist
him to
improve his performance. Despite that, he could still not meet the
required performance standard. For these reasons and
relying on case
law, the commissioner found that
dismissal
was an appropriate sanction.
[22]
It
is my view that the commissioner was reasonable in his assessment of
the evidence
before him
and reached a conclusion that any reasonable decision-maker could
have reached on the probabilities of the versions
placed before him.
There is, therefore, no reason for this Court to interfere with his
finding that Mr Mahlangu’s dismissal
was substantively fair.
[23]
Mr Mahlangu further challenged the commissioner’s conduct
during the arbitration proceedings
in that he occasionally fell
asleep whilst he was testifying. The commissioner did not file an
opposing affidavit to rebut this
submission. In the absence of such
rebuttal, I accept Mr Mahlangu’s submission. In so doing, the
commissioner committed misconduct
of a fundamental nature that
amounts to gross irregularity.
In
Gold
Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission
for Conciliation Mediation and Arbitration and Others,
[10]
the
Labour Appeal Court (LAC) stated as follows:
‘
[17]
The fact that an arbitrator committed a process-related irregularity
is not in itself a sufficient ground for interference
by the
reviewing court.
The fact
that an arbitrator commits a process-related irregularity does
not
mean that the decision reached is necessarily one that a reasonable
commissioner in the place of the arbitrator could not reach.
[18]
In a review conducted under s145(2)(a)(c) (ii) of the LRA, the review
court is not required to take into account
every factor individually,
consider how the arbitrator treated and dealt with each of those
factors and then determine whether
a failure by the arbitrator to
deal with one or some of the factors amounts to process-related
irregularity sufficient to set aside
the award. This piecemeal
approach of dealing with the arbitrator’s award is improper as
the review court must necessarily
consider the totality of the
evidence and then decide whether the decision made by the arbitrator
is one that a reasonable decision-maker
could make.’
[24]
In view of the above judgment, the applicant must demonstrate that
the commissioner’s misconduct
had a distorting effect on the
ultimate decision that he made. In other words, the applicant must
make out a case showing that
the alleged sleeping by the commissioner
during the arbitration proceedings resulted in a mistrial of issues
and/or failure by
the commissioner to resolve the substantial dispute
between the parties.
It is apparent from
the award that,
but for the irregularity,
a
different outcome would not have resulted.
[25]
The other ground for review was that the commissioner was biased
towards Mr Mahlangu in that
he was irritated and impatient with Mr
Mahlangu when he was challenging Standard Bank’s evidence.
After having had the benefit of reading the papers and the
record, I do not find merit in the complaint raised against the
commissioner
in this regard. As demonstrable from the record, all
that the commissioner attempted to do was to guide Mr Mahlangu on how
to properly
put questions to the witnesses. There is nothing, in the
record, to show that there was undue interference by the commissioner
in the arbitration proceedings and with the witnesses’
testimony. There is therefore no indication that the commissioner
abandoned the rules of natural justice or that he conducted himself
in a manner that could be seen to be irregular or biased.
As
such, I am of the view that Mr Mahlangu has not shown that
the
commissioner did not bring an impartial and unprejudiced mind on the
resolution of the dispute before him.
Mr
Mahlangu’s apprehension of bias, if any, is not reasonable.
I
can therefore find no irregularity that exists insofar as it relates
to this ground of review.
[26]
Mr Mahlangu challenged the commissioner’s decision to refuse
postponement on the basis
that he failed to take into account the
comparative abilities of the two parties. The commissioner’s
basis for his decision
appears on paragraph 6 of his award as
follows:
‘
In
the applicant’s case, I refused the postponement of the
proceedings on the basis that his attorney was not on record and
the
applicant made no mention why his union, SASBO, was not present at
these proceedings. Further, it would not have been sensible
to
postpone these proceedings when his attorney has not bothered to
place himself or herself on record by making direct contact
with the
Commission.’
[27]
I
t is trite that the granting of
postponement is an indulgence which involves the exercise of a
discretion on the part of the commissioner.
His refusal is reviewable
if the discretion was not judicially exercised. Mr Mahlangu
challenged the commissioner’s decision
not to grant
postponement on the basis that he failed
to
take into account the comparative abilities of the two parties in
that he appeared in person whilst
Standard
Bank was represented by an attorney during the arbitration. This was
disputed by Standard Bank. The commissioner recorded,
in his award,
that Standard Bank was represented by its Legal Manager: Employee
Relations. It is, therefore, not correct that Standard
Bank was
represented by an attorney. It follows that the basis on which Mr
Mahlangu challenged the commissioner’s decision
not to grant
postponement is unsustainable. As such, Mr Mahlangu has failed to
make out a case showing that the commissioner exercised
his
discretion upon wrong principles, capriciously or not judicially. I,
therefore, find no irregularity that exists insofar as
it relates to
this ground of review.
Conclusion
[28]
The applicant has not established any basis upon which the Court
could find that the commissioner’s
award is reviewable. As
aforesaid, the arbitrator considered all the evidence before him and
applied his mind to the issues raised
by the parties. As such, it
failed to discharge the onus of establishing that the commissioner
reached a decision that a reasonable
decision-maker could not make.
There is, therefore, no reason for this Court to interfere with the
arbitrator’s award.
Costs
[29]
In terms of section 162 of the LRA, the Court has a wide discretion
in awarding costs. The Constitutional
Court has recently reiterated
in
Zungu
v Premier of the Province of Kwa-Zulu Natal and Others
[11]
,
that costs orders should be made in accordance with the requirements
of law and fairness. In this matter,
the
requirements of law and fairness dictate that there should be no
order as to costs.
[30]
In the circumstances, I make the following order.
Order
1.
The application to review and set aside the
arbitration award issued by the first respondent under the auspices
of the second respondent
under case number GAJB 3916/15 dated 19 June
2015 is hereby dismissed.
2.
There is no order as to costs.
__________________
D. Mahosi
Judge
of the Labour Court of South Africa
Appearances
:
For
the applicant: Mr
Mahlangu (In person)
For
the respondent: Mr D. Cithi of Mervyn Taback
Inc.
[1]
Act
66 of 1995 as amended.
[2]
Pages
180-194 of paginated bundles.
[3]
[2007]
12 BLLR 1097 (CC).
[4]
Ellerine
Holdings Ltd v Commission for Conciliation, Mediation and
Arbitration and others
(2008)
29
ILJ
2899
(LAC) at 2906H-I.
[5]
Fidelity
Cash Management Services v CCMA and Others
[2008]
3 BLLR 197
(LAC) at para 100;
Herholdt
v Nedbank Ltd (Congress of South African Trade Unions as amicus
curiae)
[2013] 11 BLLR 1074
(SCA) at para 13.
[6]
[2011] 2 BLLR 129
(LAC)
.
[7]
Id
fn 5 at para 18.
[8]
Fidelity
Cash Management Services v CCMA and Others
[2008]
3 BLLR 197
(LAC) at para 103.
[9]
[2007] ZALC 66
;
[2014] 1 BLLR 20
(LAC) at para 25.
[10]
[2007] ZALC 66
;
[2014]
1 BLLR 20
(LAC) at paras 17 and 18.
[11]
(2018)
39 ILJ 523 (CC);
[2018] 4 BLLR 323
(CC).